DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/25/2025 has been entered.
Status of the Claim
Claims 1-5, 7, 9-38 are pending and under examination; Claims 1-5, 7, 9-13 and 30-31 are under examination. Claims 14-29 and 32-38 are withdrawn from consideration. Any objections or rejections not repeated below have been withdrawn.
Claim Objections
Claims 11 is objected to because of the following informality:
Claim 11 line 1 recites, “A. pullulans”. Although it is clear that “A. pullulans” is referring to “Aureobasidium pullulans” from claim 2 lines 1-2, the recitation should be amended to recite “Aureobasidium pullulans” or claim 2 should have the added abbreviation of “A. pullulans” added to the claim after the recitation of “Auerobasidium pullulans”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5, 7, 9-13 and 30-31 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 line 4 recites, "a lipid content of about 3% (dry matter basis)." However, upon further review of the specification it is found that this limitation is never disclosed in the specification, specifically the specification does not state that the protein concentrate contains about 3% lipid content. In table 2 on pg. 44, the different protein concentrates have the following lipid content: 1.7, 1.26, *2.73 and *1.89. The HQPC 3x wash column is the sample that contains the lipid content of 2.73 and the HQPC 1x wash column has a lipid content of 1.89. As stated in the specification [00184], both the HQPC 1x wash and HQPC 3x wash protein concentrates were “obtained using the methods as substantially recited” in the specification “and illustrated in Figs. 6-9.” Thus, the claim is considered new matter since the limitation of a lipid content of about 3% is not present in the disclosure.
Claim 1 lines 5-6 recite, “wherein said protein content of said concentrate consists essentially of water-insoluble proteins." However, upon further review of the specification it is found that this limitation is never disclosed in the specification, specifically the specification does not state that the concentrate consists essentially of water-insoluble proteins. The specification discusses recovering soluble proteins in paragraphs [00117] and [00143], but the specification does not state that the protein content of the concentrate consists essentially of water-insoluble proteins. Thus, the claim is considered new matter since the limitation of the concentrate consisting essentially of water-insoluble proteins is not present in the disclosure.
Claims 2-5, 7, 9-13 and 30-31 are included in the rejection as they depend from a rejected base claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4, 10, 12-13 and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over Gibbons et al. US 20130142905 in view of Hwang et al. US 20090093406 and DuPonte, Livestock Feed Analysis, 1998, https://www.ctahr.hawaii.edu/oc/freepubs/pdf/livestock_feed_analysis.pdf (hereinafter, DuPonte).
Regarding claim 1, Gibbons discloses a composition comprising a non-animal based protein concentrate (a high quality protein concentrate (HQPC) from plant material; Abstract, [0010], [0012], Claims 1 and 2), wherein the non-animal based protein concentrate contains a fermented plant product containing a microbe (inoculating the enzyme treated mash with at least one microbe, which microbe converts released sugars into proteins and exopolysaccharides, where the incubation process may include fermentation; Claims 3 and 4, [0025], [0040]).
Gibbons states the composition has a protein content in the range of from about 56% to about 90% on a dry matter basis [0013], which encompasses the claimed range of at least 65% to about 75% protein content.
Gibbons state the composition has a lipid content of at least about 1.25 g of lipid/100 g composition, or at least about 1.25% lipid content on a dry matter basis [0017]. This encompasses the claimed range of about 3% (dry matter basis). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Gibbons teaches the composition has an ash content of 5.21% (pg. 13 Table 2, Trial 6). Gibbons does not teach an ash content of less than 2.5% or not greater than about 4%.
Hwang teaches a vegetable protein composition derived from washed vegetable protein material (Abstract, [0003]). Hwang discloses the washing of soy protein is done to remove large amounts of soluble materials in combination with centrifugation process and may be repeated one or more times by taking the centrifuge cake of the first centrifugation and diluting with water and then putting through the centrifuge again, or in other words by washing with water one or more times. Hwang states that the slurry, after removing the soluble components by the above separation process, has an increase in protein content and has a reduced ash content due to the removal of minerals [0097-0098]. The instant specification outlines a process to achieve an ash content in the composition of not greater than about 4% by washing the cake with one or more solvents and/or downstream centrate and then separating the one or more solvents from the cake through centrifugation and repeating this process up to three times [0122] and Fig. 6. The method of the instant specification to obtain an ash content of less than 2.5% is the same process used by Hwang, of repeatedly washing the cake (soy protein) with a solvent (water).
Further regarding the particular ash content, DuPonte teaches the analysis of livestock feed, specifically ash content. DuPonte states that ash is not digestible by animals and high ash content of feeds may dilute the amount of nutrients available to the animal (pg. 1 [0001]; pg. 2, row 2 titled, “Ash = total inorganic matter”, column 2). Therefore, the reference is teaching that it has been known and desirable to remove ash to prevent dilution of nutrients available to the animal.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Gibbons by washing the protein concentrate with water in a repeated washing process as taught by Hwang, to obtain an ash content of less than 2.5% because ash is not digestible by animals and a high ash content would dilute the amount of nutrients available to the animal, as recognized by DuPonte.
Regarding the recitation, “wherein said protein content of said concentrate consists essentially of water-insoluble proteins,” Gibbons teaches a method that is substantially identical to the methods disclosed in the instant specification. Specifically, Figs. 1 and 2 of Gibbons show the method of producing protein concentrate (Fig. 1 and 2; [0076]). Figures 1 and 2 of the instant specification show the same method steps as figures 1 and 2 of Gibbons. Thus, the reference would have necessarily taught the protein content of the concentrate consists essentially of water-insoluble proteins. See MPEP 2112. "In relying upon the theory of inherency, the examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art." Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. & Inter. 1990).
Gibbons teaches said concentrate has not been subjected to precipitation (centrifuging the broth to recover solids, drying the solids, for a centrifugation first method; [0116-0117]). Gibbons states that ethanol may be used to precipitate and improve centrifugal recovery of the protein concentrate, but this is not required [0077]. Gibbons also states that the protein concentrate is recovered by centrifugation and “optionally alcohol precipitation” [0060], again noting that alcohol precipitation is optional and not required. Gibbons discloses that the protein concentrate and the methods and methodologies described in their disclosure are not limited and that the methods may vary [0033]. Thus, it would have been obvious to a person of ordinary skill in the art to envisage a method where the concentrate has not been subjected to precipitation, since Gibbons notes that precipitation is optional and centrifugation can be used to recover the proteins, also because Gibbons does not limit their method steps noting that the methods may vary [0033], [0060], [0077].
Additionally, regarding the recitation, “wherein said concentrate has not been subjected to precipitation,” the Office notes that the patentability of a product does not depend on its method of production. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). That is, since the claimed ingredients within the composition are the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product may be made by a different process. See MPEP 2113. Furthermore, the Office notes that the instant specification teaches precipitation methods as part of various approaches to produce the claimed protein concentrate [00118], [00143].
Regarding claim 2, Gibbons teaches the microbe is Aureobasidium pullulans (A. pullulans) [0014]. Regarding the recitation, “which A. pullulans produces less than about 3.0g/L pullulan when grown in a medium comprising between 0.35 and 0.5 g/L yeast extract,” This recitation is directed towards an intended use of the A. pullulans and does not specify any amount of A. pullulans. Since the Gibbons reference teaches the addition of a A. pullulans, it would be capable of the intended use of producing less than about 3.0 g/L pullulan when grown in a medium comprising between 0.35 and 0.5 g/L yeast extract.
Regarding claim 3, Gibbons teaches the non-animal based protein concentrate is derived from plant material from the group consisting of soybeans, peanuts, rapeseeds, barley, canola, peas, sesame seeds, cottonseeds, palm kernels, barley, grape seeds, olives, safflowers, sunflowers, copra, corn, coconuts, linseed, hazelnuts, wheat, rice, potatoes, cassavas, legumes, camelina seeds, mustard seeds, germ meal, corn gluten meal, distillery/brewery by-products, and combinations thereof [0012], [0045].
Regarding claim 4, Gibbons teaches the plant material is from soybeans in the form of soy flakes or soy meal (soybean meal; [0015]).
Regarding the recitation, “wherein said non-animal based protein concentrate exhibits one or more of the properties selected from the group consisting of a significant shift downward in raw NIR spectra between 4664 cm-1 and 4863 cm-1 for the composition relative to soy flakes or soy meal from which said non-animal based protein concentrate is derived, a potassium content of less than about 0.1 ppm and magnesium content of less than about 0.1ppm and a combination thereof,” this recitation is directed toward properties of the claimed composition. When comparing Figure 1 in the specification, [0042], that shows a flow chart for the conversion process of high quality soy protein concentrate (HQSPC) to Figure 1 of Gibbons, which also shows the conversion process of HQSPC, these figures are identical in method steps and conditions. It would have been reasonable for one having ordinary skill in the art to expect that when these method steps of Gibbons are combined with the extra washing method steps of Hwang, a substantially identical product to the claimed product is produced. Since Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product, it is considered to possess the property of a significant shift downward in raw NIR spectra between 4664 cm-1 and 4863 cm-1 for the composition relative to soy flakes or soy meal from which said non-animal based protein concentrate is derived, a potassium content of less than about 0.1 ppm and a magnesium content of less than about 0.1ppm and a combination thereof, as required by claim 4. As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP §2112.01 (I).
Regarding claim 10, Gibbons teaches wherein the feed is formulated for animals selected from the group consisting of fin fish (bluegill sunfish, bass, salmon, trout; [0018]), shell fish (mollusks) crustaceans, domestic animals (cat, dog), farm animals (cattle, swine, sheep) and a combination thereof [0010], [0037].
Regarding claim 12, Gibbons teaches the microbe is Aureobasidium pullulans [0014], the plant material is soy meal (soybean meal; [0015]), the composition has a protein content in the range of from about 56% to about 90% on a dry matter basis [0013], which encompasses the claimed range of at least 70% protein content.
Gibbons in view of Hwang and DuPonte teaches an ash content of less than 2.5%, as shown above in claim 1, which is the claimed range of ash content of less than 2.5%.
Regarding the recitation, “exhibits a significant shift downward in raw NIR spectra between 4664 cm-1 and 4863 cm-1 relative to soy meal from which said non-animal based protein concentrate is derived and has a potassium content of less than about 0.1 ppm and magnesium content of less than about 0.1ppm.” As stated above in claim 4, Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product. Since Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product, it is considered to possess the property of a significant shift downward in raw NIR spectra between 4664 cm-1 and 4863 cm-1 relative to the soy meal from which it is derived and has a potassium and magnesium content of less than about 0.1ppm, as required by claim 12. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Regarding claim 13, Gibbons in view of Hwang and DuPonte teach a composition wherein the shift downward is between about 10% to about 20%. As stated above in claim 12, Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product. Since Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product, it is considered to possess the property of a shift downward of between about 10% to about 20%, as required by claim 13. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Regarding claims 30 and 31, Gibbons in view of Hwang and DuPonte teach wherein the plant product is soy meal (soybean meal; [0015]), and there is at least a 10% shift downward raw NIR spectra between 4664 cm-1 and 4863 cm-1 for the non-animal based protein concentrate relative to the soy meal from which the non-animal based protein concentrate is derived, as required by claim 30; and wherein the shift downward is about 20%, as required by claim 31. As stated above in claims 4 and 12, Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product. Since Gibbons in view of Hwang and DuPonte is substantially identical to the claimed product, it is considered to possess the property of at least a 10% shift downward raw NIR spectra between 4664 cm-1 and 4863 cm-1 for the non-animal based protein concentrate relative to the soy meal from which the non-animal based protein concentrate is derived, as required by claim 30; and wherein the shift downward is about 20%, as required by claim 31. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Claims 5, 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Gibbons et al. US 20130142905 in view of Hwang et al. US 20090093406 and DuPonte, Livestock Feed Analysis as applied to claims 1 and 5 above, and further in view of Chang et al. US 20090123629.
Regarding claims 5, 7 and 9, Gibbons teaches the foodstuff (food supplement for humans; [0010], [0037], [0093]) comprising the composition, as required by claim 5; wherein the foodstuff is for human consumption (food supplement for humans; [0010], [0037], [0093]), as disclosed in claim 9. Gibbons does not teach the composition is combined with at least one meat substitute, as required by claim 5.
Chang teaches a non-animal based protein concentrate (plant protein concentrate; [0021]) that is combined with a meat substitute, as required by claim 5, where the meat substitute is tofu, as required by claim 7 (Abstract, [0002], [0004]). Change discloses when the protein concentrate and tofu are combined this improves the texture and eating quality characteristics to achieve a texture similar to those of animal meat while providing an improved nutritional profile, i.e. a higher percentage of protein and lower percentages of both fat and cholesterol [0014].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Gibbons in view of Hwang and DuPonte to add the composition of claim 1 to the tofu of Chang, because when combined this improves the texture and eating quality characteristics to achieve a texture similar to those of animal meat while providing an improved nutritional profile, i.e. a higher percentage of protein and lower percentages of both fat and cholesterol, as recognized by Chang [0014].
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Gibbons et al. US 20130142905 in view of Hwang et al. US 20090093406 and DuPonte, Livestock Feed Analysis as applied to claims 1 and 2 above, and further in view of Gibbons and Croat US 20160242435 (hereinafter Croat).
Regarding claim 11, Gibbons teaches the A. pullulans is a strain selected from the group consisting of NRRL No. 50792, NRRL No. 50793, NRRL No. 50794, and NRRL No. 50795 [0027]. Gibbons does not disclose the strain NRRL-Y-2311-1.
Croat teaches a non-animal based (canola) protein concentrate containing a microbe [0004], [0011], [0018]. Croat discloses the microbe is A. pullulans where the specific strain of A. pullulans is NRRL-Y-2311-1 [0018], [0057]. Croat uses this strain because it is one of the strains that resulted in the greatest improvement of protein content [0057].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Gibbons in view of Hwang and DuPonte to have used the A. pullulans strain of Croat because the strain NRRL-Y-2311-1 exhibits a great improvement in protein content when used, as recognized by Croat [0057].
Response to Arguments
Applicant's arguments filed 07/25/2025 have been fully considered but they are not persuasive.
Rejections Under 35 U.S.C. §103
Applicant argues, on pgs. 9-10 of their remarks, that the protein concentrate as claimed is not taught or suggested by Gibbons in view of Hwang and DuPonte because the claimed ingredients recited are not the same as those of the cited art. Applicant explains that the protein concentrate resulting from the precipitation process of Gibbons, whether by alcohol or salt, would not consist essentially of water insoluble proteins since such precipitation of proteins would include proteins that were initially both water soluble and insoluble proteins. However, the Office disagrees for the following reasons.
As discussed in the rejection above, Gibbons teaches said concentrate has not been subjected to precipitation (centrifuging the broth to recover solids, drying the solids, for a centrifugation first method; [0116-0117]). Gibbons states that ethanol may be used to precipitate and improve centrifugal recovery of the protein concentrate, but this is not required [0077]. Gibbons also states that the protein concentrate is recovered by centrifugation and “optionally alcohol precipitation” [0060], again noting that alcohol precipitation is optional and not required. Gibbons discloses that the protein concentrate and the methods and methodologies described in their disclosure are not limited and that the methods may vary [0033]. Thus, it would have been obvious to a person of ordinary skill in the art to envisage a method where the concentrate has not been subjected to precipitation, since Gibbons notes that precipitation is optional and centrifugation can be used to recover the proteins, also because Gibbons does not limit their method steps noting that the methods may vary [0033], [0060], [0077].
Additionally, regarding the recitation, “wherein said concentrate has not been subjected to precipitation,” the Office notes that the patentability of a product does not depend on its method of production. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). That is, since the claimed ingredients within the composition are the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product may be made by a different process. See MPEP 2113. Furthermore, the Office notes that the instant specification teaches precipitation methods as part of various approaches to produce the claimed protein concentrate [00118], [00143].
Applicant argues, on pg. 10-11 of their remarks, that Gibbons teaches the importance of preserving a high content of water-soluble protein and quotes from Gibbons [0049]. Applicant argues, Gibbons impliedly teaches away from washing in view of paragraph [0049]. Applicant states that suggesting the precipitated product of Gibbons et al. can be washed, using the process of Hwang to achieve the ash content as claimed, would remove the water-soluble proteins that Gibbons is trying to preserve. Applicant indicates that a skilled artisan would not apply the teachings of Hwang to achieve the ash content since such washings would not preserve the high content of water-soluble protein in the protein concentrate, as taught in Gibbons. However, the Office disagrees for the following reasons.
Gibbons in paragraph [0049] and the instant specification paragraph [0098] recite the same sentence, specifically, “For soy protein flours, soy protein concentrates, and soy protein isolates, it is important that the flakes be desolventized in a manner which minimizes the amount of cooking or toasting of the soy protein to preserve a high content of water-soluble soy protein.” Both Gibbons and the instant specification are showing the importance of preserving protein, whether that is soluble or insoluble protein, since the end product is a protein concentrate. Therefore, just as the instant specification doesn’t impliedly teach away from washing, Gibbons is not viewed as teaching away from washing. Thus, it would have been obvious to a person of ordinary skill in the art to apply the teachings of Hwang and DuPonte to Gibbons, in order to achieve the ash content in the protein concentrate as claimed, since ash is not digestible by animals and a high ash content would dilute the amount of nutrients available to the animal, as recognized by DuPonte.
Moreover, a prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness; however, "the nature of the teaching is highly relevant and must be weighed in substance. A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) MPEP 2145(X)(D)(1).
Applicant argues, on pg. 11 of their remarks, that the NIR absorbance between the claimed product and that of modified Gibbons would not be the same, since the claimed product has not been subjected to precipitation and would not be the same as the protein concentrate that has been subjected to precipitation. However, the Office disagrees for the following reasons.
The Office asserts that the protein concentrate of Gibbons may be produced without being subjected to precipitation, see rejection above. Thus, the protein concentrate of modified Gibbons is still considered substantially identical to the claimed protein concentrate and exhibits substantially identical properties, such as an NIR absorbance within the claimed range. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Applicant argues, on pgs. 12-14 of their remarks, that one of ordinary skill would not use the teachings of Croat because the skilled artisan would predict the resulting product from the use of A. pullulans NRRL-Y-2311-1 would have a fat and ash content outside of the range for the claimed protein concentrate and would not achieve the percent protein content within the claimed range. Applicant then states that Croat teaches the protein content using the NRRL-Y-2311-1 strain increases between 15-23% in the final protein concentrate. The Applicant believes that even with this increase in protein by using the NRRL-Y-2311-1 strain of A. pullulans, the overall protein content of the protein concentrate of modified Gibbons would still be out of the claimed range of protein for the protein concentrate. The Applicant argues that one skilled in the art would not have a reasonable expectation of success for achieving the claimed invention. However, the Office disagrees for the following reasons.
As stated in the rejection above, Gibbons teaches the composition has a protein content in the range of from about 56% to about 90% on a dry matter basis [0013]. Thus, modifying Gibbons to use the specific A. pullulans strain NRRL-Y-2311-1, would still achieve a protein content within the claimed range, since Gibbons already teaches a protein content that encompasses the claimed range. Additionally, as shown by the above rejection modified Gibbons teaches a composition that has a fat (lipid) and ash content as claimed.
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759